Assadourian v Roads and Maritime Services (GD)

[2013] NSWADTAP 46

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46

Hearing dates:

8 May 2013

Decision date:

22 October 2013

Jurisdiction:

Appeal Panel - Internal

Before:

Judge K P O'Connor, President
S Frost, Judicial Member
M Bolt, Non-judicial Member

Decision:

1. The appeal is dismissed as it relates to the Tribunal's decision to affirm the decision to disqualify the appellant from holding an operator's licence.

2. The appeal as it relates to the appellant's driver certificate is extended to the merits. The Registrar is to fix a date for the making of directions for the hearing on the merits.

Catchwords:

OCCUPATIONAL REGULATION - Tow Truck Industry - Operator Licence - Driver certificate - Tribunal affirmed administrator's decisions to disqualify applicant from both authorities - reduced period of disqualification - Appeal - Operator decision affirmed - Fitness may vary having regard to nature of authority - Operator history not necessarily relevant to driver certificate - Conduct as driver during stay period to be taken into account - Leave granted to extend appeal to merits

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Tow Truck Industry Act 1998

Cases Cited:

Assadourian v Roads and Traffic Authority [2013] NSWADT 6
Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Burton v Anderson, unreported, 28 September 1994, Court of Appeal
Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280
D'Amore v Independent Commission Against Corruption [2013] NSWCA 187
Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180
Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24
Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Singh v Director-General, Department of Finance and Services [2011] NSWADT 296

Category:

Principal judgment

Parties:

John Assadourian (Appellant)
Roads and Maritime Services (Respondent)

Representation:

Counsel
M Condon SC (Appellant)
K Eastman SC (Respondent)
Sage Solicitors (Appellant)
Smythe Wozniak Legal (Respondent)

File Number(s):

139004

 Decision under appeal 

Citation:

Assadourian v Roads and Traffic Authority [2013] NSWADT 6

Date of Decision:

2013-01-11 00:00:00

Before:

General Division

File Number(s):

093327, 113148

reasons for decision

1. The appellant, Mr Assadourian, has applied to the Tribunal for review of three administrative decisions made by Roads and Maritime Services (RMS) as administrator of the Tow Truck Industry Act 1998 (the Act): decision to refuse his application for renewal of his tow truck driver's certificate (November 2009); decision to disqualify him from being eligible for a tow truck driver's certificate for ten years (June 2011) and decision to disqualify him from being eligible for a tow truck operator's licence for ten years (June 2011).

1. In December 2009 he applied to the Tribunal for review of the first decision (application no 093327), and was granted a stay, with the result that he continued to drive. He lodged a second application for review after the disqualification decisions (application no 113148). The stay was continued. Following a hearing held in June and July 2012, the General Division of the Tribunal affirmed all three decisions but varied the disqualification period to one of two years: Assadourian v Roads and Traffic Authority [2013] NSWADT 6 (11 January 2013). The appellant now appeals against the Tribunal's decisions, while the respondent has lodged a notice of contention, arguing that the Tribunal wrongly excluded certain material from its consideration, and seeks reinstatement of the ten year disqualification periods. The appellant obtained a stay from the Appeal Panel pending disposal of the case, with the result that he continues to drive.

1. The November 2009 decision: As at November 2009 Mr Assadourian had held for many years a tow truck driver's certificate issued under the Act. In deciding to refuse his application for renewal, RMS relied on a history of contraventions of the law, which, in its opinion, demonstrated that he could no longer be regarded as a 'fit and proper person' to hold such a certificate and demonstrated that it would be 'contrary to the public interest' for him to hold such a certificate (s 26(3)(a), s 26(3)(d)). The history of contraventions referred both to his record as a driver and his record when he was a licensed tow truck operator. Mr Assadourian had held an operator's licence between November 2004 and April 2008 on behalf of Towman Pty Ltd (Towman), of which he was the sole director, secretary and shareholder.

1. Towman relinquished the licence in April 2008 after Mr Assadourian sold his two trucks to Northern Division Towing Pty Ltd (NDT). NDT held an operator's licence and was, in turn, a wholly owned subsidiary of a major operator, Combined Towing Services (NSW) Pty Ltd (CTS). Mr Assadourian leased the trucks back, and entered into an agreement with NDT under which he was to work for them as a driver and receive payments from NDT for work done. However, under the agreement, he or Towman would remain responsible for many aspects of the cost of operation and maintenance of the trucks and for workers compensation, and superannuation. In November 2008 RMS's inspectors expressed concern to Mr Assadourian, and suggested that he was still doing business as an operator, in breach of the law. The Act, s 15 provides:

15 Requirement for tow truck operators to be licensed

A person must not carry on business as a tow truck operator unless the person holds a tow truck operators licence that authorises the kind of towing work carried on by the person in the course of that business.

Maximum penalty: 100 penalty units or imprisonment for 12 months, or both.

1. The June 2011 decisions: In its November 2009 reasons RMS referred to its concern that he had conducted himself as an operator unlawfully in the period after Towman relinquished its licence.

1. In the June 2011 reasons it referred to the fact that it had commenced a prosecution of Mr Assadourian and Towman Pty Ltd for breach of s 15 alleging that they carried on business on 21 occasions in the period July 2009 to December 2009 by operating as an 'owner/driver' under 'the guise' of licensed tow truck operator, NDT. These matters remain before the Parramatta Local Court pending disposal of these proceedings.

1. Further it referred to further convictions incurred by Mr Assadourian and Towman in 2010 referable to the period when Towman held a licence, i.e. failure to leave the scene of an accident when required, non completion of invoices for towing work, and failure to keep a record of towing work and failure to make entries in the holding yard register.

1. The most important additional matter was conduct Mr Assadourian was said to have engaged in at the scene of an accident on 3 May 2011, which he had attended as tow truck driver. The reasons referred to charges laid by the police on 24 May 2011 - intimidation of the owner of a damaged vehicle (an indictable offence), and disobeying directions given to him by a police officer to leave the scene of an accident.

1. These matters led RMS to decide on 3 June 2011 to take 'disciplinary action' against Mr Assadourian pursuant to s 42 of the Act. It decided to disqualify Mr Assadourian from holding an operator's licence or from holding a driver's certificate until 1 June 2021 on the following grounds: that he had been 'charged with an indictable offence' (s 42(1)(b)); that he had 'contravened provisions of the Act and regulations' (s 42(1)(d)); that he was 'not a fit and proper person' to hold an operator's licence or a driver's certificate (s 42(1)(f)); and that, in its opinion, he had engaged in 'fraudulent or dishonest conduct or activity in connection with the licensee's business as a tow truck operator' (s 42(1)(h). Mr Assadourian applied for review; the Tribunal continued the stay order applying to the driver's certificate.

1. Referral of Question of Law, December 2010 - September 2011: The first application for review was still pending before the Tribunal when the disqualification decisions were made. This was because the case was before the Supreme Court following referral of a question of law, done with the agreement of the parties, and on the basis of an agreed statement of facts. The question of law went to the operator side of the case. In its reasons of November 2009, as previously noted, RMS had relied on, what it regarded, as Mr Assadourian's misconduct in operating a business in the period after Towman had relinquished its operator licence. There was dispute as to whether the conduct infringed s 15, and for that reason the parties sought a Supreme Court ruling. The Court (Rothman J) ultimately declined to make a ruling, but it did make a number of observations on the interpretation of s 15: Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 (9 September 2011).

1. The disqualification decisions were made while the case was before the Supreme Court on the question of law. The administrator's reasons for the 2009 decision and for the 2011 decisions are extracted in detail at paras [3] and [6] of the Tribunal's reasons; and the facts as agreed before the Tribunal in relation to the business relationship with NDT are set out at para [38].

1. By the time the case reached hearing in June 2012, there had been some further developments. RMS revised its reasons to take into account, most importantly, the outcome of the charges laid on 24 May 2011. The indictable offence charge, intimidation of an owner of a vehicle, was withdrawn. On 24 May 2012 Mr Assadourian was found guilty of the resist/hinder police charges. He was discharged on the basis of a s 10 non-conviction bond, to be of good behaviour for six months.

1. In summary, the history divided as follows:

• Driver history: 4 convictions as a driver in the period 2004 to 2012 being resisting/hindering a police officer (the 3 May 2011 event), failure to comply with direction at scene of accident, failure to leave accident once authorisation obtained and contravention of condition of certificate in relation to exceeding maximum fee.
• Operator history: 11 convictions. They included repeated failures to keep proper records and not including in them prescribed contents, in particular holding yard records.

1. RMS submitted to the Tribunal that Mr Assadourian's pattern of contravention of relevant laws clearly demonstrated that he was not a fit and proper person to continue to hold a certificate or an operator's licence, and that a long period of disqualification was warranted.

1. At its hearing the Tribunal received evidence from a police officer who attended the incident on 3 May 2011 and considered a statement from the owner of the vehicle who had complained about Mr Assadourian's behaviour.

The Tribunal's Decision

1. The Tribunal's reasons for decision commenced with a detailed account of the provisions of the Act that bear on a driver's certificate and an operator's licence: see paras [10]-[28]. We will not repeat all that material in this decision. The Tribunal then set out the history of the question of law proceeding: paras [29]-[37]. The Tribunal set out a number of observations made by Rothman J going to the interpretation of s 15.

1. Next the Tribunal set out the parties' 'agreed facts' as submitted to the Tribunal hearing: para [38]. This statement expanded on the agreed facts that were presented to the Supreme Court in relation to the question of law. Many of the matters itemised as undervalued or disregarded by the Tribunal in the grounds set out in the notice of appeal (see below) are mentioned in the statement of agreed facts, and are seen as positive by Mr Assadourian.

1. At [39], the Tribunal began its consideration of whether Mr Assadourian was a fit and proper person to hold a driver's certificate or a tow truck operator's licence with an account of the relevant law. It confined its reasons to the fitness question.

1. It summarised RMS's submissions at [45]-[49] as follows:

45 The proper functioning of the tow truck industry requires public confidence and reliance on the propriety and integrity of those licensed to work within it. Consideration of the question of whether a person is fit and proper to participate in the industry involves taking account of the person's compliance with regulatory requirements and the extent to which their record of compliance reflects the person's attitude to the regulatory regime.

46 The Respondent submits that the Applicant has repeatedly breached requirements of the statutory scheme over a number of years, and enough chances have been given to him, bearing in mind the high standards which the Parliament intended to set for this trouble-prone industry.

47 Further, the Respondent submits that the Applicant's arrangements with Northern Division Towing ("NDT") mean he is carrying on a business as a tow truck operator in breach of section 15 of the Act, and this arrangement contravenes and undermines the operation of the Act.

48 The Respondent asserts that the Applicant and/or Towman the submission of the Respondent is that the Applicant and/or Towman were carrying on business as tow truck operators and between July and December 2009 probably committed the 21 offences alleged to have been committed under section 15 of the Act. The Respondent submits that if the Applicant and/or Towman are carrying on a business contrary to section 15 of the Act, then that cannot be permitted to continue.

49 It is common ground that this point is relevant to the fit and proper person issue and both the disqualification and non-renewal decisions.

1. Then at [50] it turned to the debate over the proper construction of s 15 of the Act, and its application to the agreed facts as presented to the Tribunal (a revised version of those presented to the Supreme Court). It is in this context that the Tribunal first referred to the Anderson Report of 1998 (an issue raised by the grounds of appeal). The report made recommendations for cleaning up the industry, and imposing tougher regulation. It led to the passage of the current Act.

1. At [60] and following the Tribunal summarised the concerns identified by the Report about the operation of the tow truck industry, the complexities that are involved in managing the distribution of tow truck services across the State, in ensuring appropriate responsiveness to accidents, and the maintaining of order at the scene of accidents.

1. The Report and the Minister's second reading speech referred to the highly competitive behaviour and practices adopted by many operators and drivers. All of this was covered in order to ascertain the object of s 15 of the Act.

1. The Tribunal continued its examination of s 15 with an account of RMS's submissions, and Mr Assadourian's submissions. The Tribunal gave its 'decision on the s 15 issue' at [98]-[102]. It was not satisfied that there were any contraventions. The RMS has lodged a notice of contention (see below) going to that part of the decision.

1. The Tribunal dealt with the balance of the case at paras [103]-[130]. Mr Assadourian's grounds of appeal mainly focus on this part of the Tribunal's reasons. The Tribunal referred to the oral evidence received by it, which it said 'largely concerned' the incident on 3 May 2011: see [106] to [114]. The Tribunal heard evidence from the attending police officer. It accepted as accurate the written statement made by the vehicle owner, a woman who had gone to the scene of the accident alone after being called there by police. (Her parked car had been damaged by a passing car that had got out of control.) In essence, she said that Mr Assadourian made her feel anxious and intimidated over the way he pressed her to give him the towing work, when she wanted to speak independently to the NRMA and make her own arrangements. Finally, the Tribunal referred to the applicant's testimonials at [115] to [118].

1. The Tribunal's substantive assessment appears at [119] to [130]. We will set that out in full:

Discussion

119 It has been made clear from the second reading speech and from in earlier decisions of this Tribunal that the legislature takes criminal activity within the tow truck industry extremely seriously. The Respondent argues that the Applicant's criminal record does not reflect a person who has the moral integrity and rectitude of character necessary to fulfil the role of a tow truck driver within the tow truck industry. It is further submitted that each of the offences took place in the course of the Applicant's activities in the tow truck industry and relate directly to his fitness to participate in that industry.

120 Further, the Respondent argues that the Applicant's argumentative behaviour towards police is significant, as is the repeated nature of the offences.

121 The conduct that resulted in the recent convictions occurred whilst the Applicant knew that the issue of whether he was a fit and proper person, and whether he should retain his drivers certificate was in dispute before this Tribunal. The Respondent argues that to commit further offences in those circumstances is indicative of a contemptuous attitude to the regulatory scheme.

122 I agree with the Respondent that the Applicant's behaviour at the incident on 3 May 2011 casts doubt on his ability to comply with his obligations as a tow truck driver. While I accept that it was towards the lower end of the scale of seriousness, the incident occurred at a time when the Applicant had the benefit of a stay of the Respondent's determination. The incident happened during the course of these proceedings. It is also relevant that it occurred within the regulated activity. In that regard the circumstances are quite different to those in the matter of A Solicitor v Council of the NSW Law Society (2004) 216 CLR 253.

123 The incident also must be viewed in the light of the conduct that has lead to several offences over the previous several years. In my view, it is an issue that goes to his ability to work within the scope of the regulatory scheme.

124 As noted above, a person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake and the ends to be served by those activities. That involves taking account of a person's compliance with regulatory requirements and the extent to which their record of compliance reflects the person's attitude to the regulatory regime.

125 I agree with the Respondent that the Applicant has demonstrated over several years that he will breach the Act and at this time I do not have confidence that the Applicant will not re-offend or be the subject of further charges or disciplinary action.

126 On the totality of the evidence before me in this matter it is my view that the Applicant is not a fit and proper person to hold a drivers certificate.

127 Accordingly it is my view that the determination to refuse to grant the application was the correct and preferable decision in all the circumstances and the decision should be affirmed.

128 It is not necessary that I determine whether the granting of a drivers certificate would be contrary to the public interest.

129 For the same reasons it is my view that the determination to disqualify the Applicant from holding an operators licence or a drivers certificate was also the correct and preferable decision. In my view, some time out of the industry would assist in focusing his mind on the responsibilities of a tow truck driver and appropriate conduct of those working within the industry. However, I do not consider that a period of disqualification for 10 years is warranted. In my view, a period of disqualification for two years is warranted. In all the circumstances the decision should be varied to reflect that lesser period.

130 As this will have a significant effect on the Applicant I think it appropriate that the orders not have effect immediately. In my view, it is appropriate that the decision have effect 28 days after this decision.

1. It will be seen that the Tribunal decided the case solely by reference to the fitness ground relied upon in both the November 2009 and June 2011 decisions (see s 26(3)(a) and s 42(1)(f)). It declined to make a finding in relation to the second ground relied upon in the November 2009 decision, the public interest (s 26(3)(d)). It did not refer to the three grounds additional to fitness relied on in the June 2011 decisions, i.e. being charged with an indictable offence, which we accept was no longer relevant once it had been withdrawn; history of contraventions (s 42(1)(d)); and, most significantly, the allegation that he had engaged in fraudulent or dishonest connection with the licensee's business as a tow truck operator (s 42(1)(h)).

The Appeal

1. Mr Assadourian emphasised in his appeal submissions that his main concern is to obtain reinstatement of his tow truck driver's certificate.

1. RMS has lodged a notice of contention going to the way in which the Tribunal dealt with RMS's case as it related to the allegations that he had undertaken unlicensed work as a tow truck operator in the period April 2008 to November 2009. Clearly if Mr Assadourian was operating in the period April 2008 to November 2009 as an operator and was doing so without being licensed that is a very serious matter. It would mean that various accountability and consumer protection requirements mandated by the Act would not have been in place.

1. Mr Assadourian seeks orders that the Tribunal's disqualification orders be set aside, and that he be granted a tow truck driver's certificate. He has referred in material filed before the Tribunal to his financial circumstances, the income he derives from tow truck work, and his inability to replace that income with equivalent income from other types of work. He referred to his family situation, and the extent to which his three children are still dependant.

1. Mr Assadourian acknowledges that his driver and operator record in the period 2004-2009 was not a good one. However, he refers to the fact that he pleaded guilty to the Towman charges that gave rise to the convictions in 2010. He submits that they were regulatory breaches and they did not result in severe penalties. In relation to the incident of 3 May 2011, he notes that two charges proceeded but not the most serious one of intimidation of the owner of the vehicle, that he pleaded guilty and the penalties were not severe.

1. He says that during the period of the stay which had, at the time of the appeal hearing in May 2013, been in place for more than three years, he had attended around 500 accidents, and only that one had given rise to a complaint against him.

Grounds of Appeal

1. An appeal may be made on a question of law, and, with the leave of the Appeal Panel, may be extended to the merits: Administrative Decisions Tribunal Act 1997, ss 112, 113. Mr Assadourian's grounds of appeal are set out in the amended notice of appeal filed 22 February 2013, as follows:

(1) [The Tribunal] Wrongly decided that the appellant's conduct, as found by it, justified a finding that the appellant:

(a) was not a fit and proper person to hold a driver's certificate; and

(b) should be disqualified from holding an operator's licence and a driver's certificate.

(2) Wrongly had regard to the terms of the Anderson Report and the views the Tribunal attributed to the Parliament in assessing the appellant's fitness to hold a certificate.

(2A) Consequently, the findings concerning the appellant tainted by error of law.

(3) Wrongly decided that the appellant was not a fit and proper person to hold a certificate by having regard to matters such as:

(a) whether the appellant's conduct on 3 May 2011 'cast doubt on his ability to comply with his obligations as a tow truck driver'' and

(b) a lack of confidence on the Tribunal's part that the appellant would not re-offend in future

without the Tribunal undertaking the necessary assessment of the appellant's conduct as a whole and the offences he had committed and without having regard to the fact that offences against the Act, and the regulations, do not constitute a ground for automatic disqualification from obtaining an operator's licence or a driver's certificate.

(3A) In the premises the Tribunal:

(a) misdirected himself in law as to the relevant tests to be applied; and

(b) failed to have regard to relevant facts and thus failed to accord procedural fairness to the appellant.

(4) In determining that the appellant:

(a) was not a fit and proper person to hold a driver's certificate; and

(b) should be disqualified from holding an operator's certificate and a driver's certificate,

the Judicial Member failed to make findings about the past conduct of the appellant which purportedly justified those determinations notwithstanding:

(i) the disastrous consequences for the appellant which would flow from the aforesaid determinations;

(ii) the appellant had given evidence that he had learned from the incident on 3 May 2011;

(iii) the said conduct was relied upon by the Judicial Member as casting doubt on the appellant's compliance with statutory requirements in the future.

(5A) In the premises, the Judicial Member:

(a) failed to exercise the jurisdiction conferred on him;

(b) failed to accord procedural fairness to the appellant; and

(c) failed to provide adequate reasons for his determination.

(5) In making the determinations referred to in paragraph 4, the Judicial Member failed to have regard to, or take into account, the following matters:

(a) the minor nature of the appellant's offences;

(b) the fact that those offences had nothing to do with the mischief identified by the Anderson Report;

(c )the disastrous consequences that would enure to the appellant as a result of the said determinations;

(d) the fact that the offences were sporadic, in some cases old and did not disclose a pattern of disregard for his statutory obligations;

(e) that the respondent itself regarded many of the offences to be minor and the result of an administrative breakdown;

(f) the fact that respondent Authority had, in relation to the offences which led to the appellant's conviction on 17 May 2010, eschewed any suggestion of dishonesty on the part of the appellant;

(g) the fact that the offences should be seen in the context of the appellant's long and heavy involvement in the tow truck industry;

(h) the fact that the offences should be seen in the light of the testimonials of the appellant's conduct made by the appellant's clients;

(i) the fact that the said testimonials were relevant and carried weight notwithstanding that in many cases the authors did not indicate a full appreciation of the appellant's history, because they nonetheless constituted evidence of the appellant's compliance with the relevant statutory obligations and his conduct as a tow truck driver on other occasions;

(j) the fact that the appellant had shown remorse for his conduct; and

(k) the fact that the appellant had taken steps to avoid a repeat of his conduct.

(6) The findings made by the Judicial Member were so unreasonable as to indicate that he did not apply the proper legal test, and that he misdirected himself in law.

(7) In the alternative, the appellant seeks leave to extend the appeal to the merits.

1. Mr Assadourian seeks the following orders: the appeal be allowed, granting Mr Assadourian a tow truck driver's certificate, and that the determinations disqualifying him from holding a certificate or an operator's licence be set aside.

Grounds of Appeal: General Observations

1. The grounds of appeal put in issue the Tribunal's finding that Mr Assadourian was not a fit and proper person to hold either a driver's certificate or an operator's licence, and put in issue the severity of the penalty (disqualification for two years).

1. (1) Relevant Considerations. There is no need to catalogue all possibly relevant considerations and work through them. The administrative decision-maker, and the Tribunal on review, may decide to concentrate on some of the relevant considerations and make no reference to others that could possibly be discerned from the material. As Mason J noted in Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 at 41:

Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision .... A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision ... .

1. Importantly, as recently noted by Basten JA in Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 at [9]:

The term "relevant considerations" is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J) it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be "mandatory consideration". Further, a matter traditionally described as an "irrelevant consideration" is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.

1. Basten JA continued:

10 The next concept is that of "taking into account". It covers a spectrum of conduct. If a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence. In either case, if it were a mandatory consideration, there would be an error of law. If, however, the matter is referred to there may still be a basis for review. In some cases, it is asserted that there has been a failure to give "proper, genuine and realistic consideration", to a particular matter. That is best understood as a complaint of failure "to give adequate weight to a relevant factor of great importance": see Peko-Wallsend at 41 (Mason J). The other side of this complaint is giving "excessive weight to a relevant factor of no great importance". Dealing with these circumstances, Mason J continued:

"The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene MR in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it."

1. The assessment of fitness is a classic example of a situation where there will be a range of 'permissible considerations'. The judgment does not stand or fall because other 'permissible considerations' might have been taken into account, where they are simply additional factors that might have been placed in the balance.

1. (2) The Anderson Report. The grounds of appeal criticise the Tribunal for the extent of its reference to and reliance upon the Anderson Report. An administrative decision maker and the review tribunal as a substitute decision maker must take as its guide the words of the statute as they appear in the statute read as a whole, informed for example by any objects clause, and apply them to the specific circumstances of the case before it. Here the Anderson Report was used as a guide to an understanding of the reasons for the stricter disciplinary regime seen in the current Act as compared to predecessor legislation. It was also used as a guide to informing the Tribunal as to the areas of industry participant conduct of most concern to the community.

1. In our view, the Tribunal did not miscarry in using this Report. It did not, in our opinion, stray into error by for example substituting the terms of the report for the terms of the statute or by introducing into its thinking as relevant considerations matters canvassed by the Report that could reasonably be said to be inconsistent or at odds with the terms of the discretion required to be exercised by the statute.

1. (3) Adequacy of Reasons. We agree with Mr Assadourian's submissions that the Tribunal's reasoning process as found in the final part of its reasons, headed 'Discussion' is relatively sparse. For a recent review of the principles relating to adequacy of reasons, see Keith v Gal [2013] NSWCA 339 esp per Gleeson JA.

1. As Meagher JA noted in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441, there is no need to refer to relevant evidence in detail provided it is clear that it has been considered. There is no need to refer to all aspects of the evidence in the way that the grounds of appeal suggest. The Tribunal's reasons gave a comprehensive account of the evidence. Nor is this a case where the conclusion reached by the Tribunal was 'devoid of reason', 'clearly unjust' or arbitrary. See further the recent discussion of this ground of objection in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 per Beazley P, esp at [77] ff. See also Basten JA in Lo at [13] ff.

1. Further, 'the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error' - is applicable to the grounds of appeal in this case. The observation was made in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287 by the Full Court of the Federal Court (Neaves, French and Cooper JJ) and endorsed by the High Court in Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.

1. A higher standard applies to the analysis of 'critical' evidence and critical issues. The reasons should clearly refer to the critical matters, and dispose of them. See also D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [106] ff per Beazley P. Gleeson JA in Keith v Gal notes:

110 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. As stated by Basten JA (Beazley JA (as her Honour then was) and Macfarlan JA agreeing) in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]:

"It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality."

111 A similar reticence when scrutinising judicial reasons was expressed by Allsop P in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 where his Honour (at [2]) stated that when dealing with large bodies of evidence, a judge may be:

"forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression .... That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved. "

1. In this instance, we accept that the reasons do not refer directly to a number of matters set out in the agreed statement of facts. In our view, on a fair reading the Tribunal is clearly alluding to this material when it proffers the general conclusions that appear in the extract set out at [25] above. However, it will be seen in the analysis which follows that we do think the Tribunal fell into error in not separating more clearly than it did the case against Mr Assadourian in relation to the operator licence from the case against him in relation to the driver's certificate.

1. (4) Assessment of Fitness. Fitness is a variable concept that takes its hue from the nature of the authority. There were different authorities under notice here.

1. The following statements have been noted in many decisions of the Tribunal:

(1) 'The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities': Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Toohey and Gaudron JJ said at 380.

(2) 'Whether a person is "fit and proper" to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objectives leading the legislature to regulate the industry': Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 per O'Connor P at [41].

1. We accept that in assessing a person's capacity to be an operator, it would normally be appropriate to have regard to any driver history of misconduct especially as it might bear on such matters as fitness to deal with customers, and honesty and integrity.

1. But we do think great care needs to be taken in cross-applying operator contraventions to the question of fitness to hold a driver certificate. A person might not be of sufficient competence, integrity and trustworthiness to run a business with its complex demands yet be accepted as being competent to undertake work as a driver employed by a licensed operator. We are concerned that in this case the way the cases were presented, and the way they were examined in turn by the Tribunal did not segregate the two situations. For a relatively recent example of the Tribunal segregating its consideration of fitness as between two different classes of authority (real estate agent, versus employed salesperson), see Singh v Director-General, Department of Finance and Services [2011] NSWADT 296.

1. We now turn to the specific decisions.

The Operator Licence Decision

1. We consider that the decision as it relates to the operator licence is not affected by any legal error and we are not inclined to disturb it. In our view, there was ample material before the Tribunal that might raise doubt as to Mr Assadourian's fitness to hold an operator's licence, regardless of the conclusion reached in relation to the situation between June and December 2009. The Tribunal's reasons going to this matter were sufficient. The operator's licence allows for the conduct of a business that holds itself out to the public and is obliged to observe numerous obligations in relation to the towing and keeping of vehicles, and the maintenance of records. Mr Assadourian's history as an operator was a poor one, given in particular the short period in which Towman held a licence.

1. A tribunal might, not unreasonably, have concluded that this history justified a finding that he was not presently fit to be granted an operator's licence, and the upgraded sanction of disqualification was appropriate in light of the offences recorded in June 2010 and in light of what occurred on 3 May 2011. In these circumstances the decision of the Tribunal to reduce the period of disqualification to two years was, we consider, not affected by legal error. While it is not necessary to demonstrate an error of law to be given leave to extend an appeal to the merits, we are of the view that this aspect of the Tribunal's decision ought not be revisited.

The Driver Certificate Decision

1. The case against Mr Assadourian in relation to his fitness as a driver was not as strong as the case relating to the operator authority. Mr Assadourian's key concern is to retain his driver's certificate.

1. Measured by the number of convictions, Mr Assadourian's driver history was not as bad as his operator history as at December 2009. This case is highly unusual in that Mr Assadourian has now driven (under a stay) for a considerable period of time since he was refused renewal in December 2009. He has had, as he submits, a relatively unblemished history as a driver in the period since December 2009. The major exception is what occurred on 3 May 2011. In its case before the Tribunal, RMS relied strongly on the events of 3 May 2011 to demonstrate his continued unfitness and to justify its disqualification decision. That decision was based on the information it had as at 3 June 2011.

1. Ultimately the most serious charge was withdrawn by the police. The penalty imposed by the court on the other charge was a light one. In our view when regard is had to these outcomes, it is difficult to justify the imposition of such a harsh penalty. We are not satisfied that his conduct on 3 May 2011, as finally dealt with by the court, could justify such a severe form of disciplinary action.

1. Further, while there was, nevertheless, a strong case as at December 2009 that Mr Assadourian was not then fit to hold a driver's certificate, the Tribunal must deal with the matter on the basis of his present fitness at the time of hearing.

1. In Burton v Anderson, unreported, 28 September 1994, the Court of Appeal (Kirby P, Priestley, Handley JJA) dealt with an unusual case where a veterinary surgeon had continued to practise despite having been the subject of a disciplinary order of suspension for 3 months, and requirements as to retraining. Under the law relating to veterinary disciplinary appeals at the time, the lodgment of a notice of appeal gave rise to an automatic stay.

1. The veterinary surgeon therefore continued to practice pending disposal of the appeal. Neither party (in particular the agency that brought the proceedings) took any steps to bring the appeal on. The result was that by the time his appeal was heard by the Court of Appeal he had been in practice for a further three years.

1. All members of the court agreed that there had been no error in the reasons for decision of the primary tribunal at the time the decision was delivered, but now three years had passed; and it was necessary to have regard to the conduct of the veterinary surgeon in the intervening period. The court concluded that the surgeon had proved by his conduct in the intervening period that he was now presently fit to remain in practice, and the suspension should not be enforced. In the result the suspension was set aside, replaced by a reprimand and the parties agreed to a retraining regimen.

1. We accept that this case is different to Burton v Anderson in that there is the further misconduct that occurred on 3 May 2011 while Mr Assadourian had the benefit of the stay.

1. We are concerned that the Tribunal did not clearly segregate the case against Mr Assadourian in relation to the operator licence from the case in relation to the driver certificate. In our view, and in this regard we do see a problem in relation to the adequacy of reasons, the two matters should have been separately examined. They were mixed together.

1. We acknowledge that it may be proper in assessing fitness and propriety to have regard to a person's overall history of compliance with industry standards (in whatever capacity they have participated in the industry), but we do not accept that in this case they should have been mixed to the degree they were. A person might be clearly unfit to be an operator (or in the real estate example, an agent dealing with the public), but the matters that make them unfit in that regard may have less or no real relevance to working in the same industry in a subordinate and more limited role as an employee.

1. Mixing the examination of the history in the way that, we consider, occurred in this case carries the danger that the fitness standards appropriate to a driver certificate will be assimilated to those appropriate to the more demanding, operator certificate.

1. In our view it was plain that Mr Assadourian should no longer be allowed to be an operator, but much less clear that his history warranted removal of his driver certificate, especially if the driver certificate has clear conditions in relation to working for a licensed operator.

1. In our opinion the appeal as it relates to the driver certificate should be extended to the merits. We will set aside a day to hear the appeal as it relates to the certificate. We should indicate that it should not be presumed we have reached a final view on the fitness issue. And, as noted earlier, there were other grounds upon which RMS relied that were not addressed by the Tribunal.

RMS's Notice of Contention

1. RMS's notice of contention relates to the hotly contested matter of whether Mr Assadourian operated a business without a licence in the period June 2009 to December 2009. As previously noted, the question of whether the agreed facts demonstrated serial contraventions of s 15 went to the Supreme Court, and was not resolved, and then came before the Tribunal. The Tribunal was not satisfied that the case had been made out.

1. The provision is an offence provision. As also noted earlier in these reasons, the charges remain before the Local Court, and are held up waiting any views of this Tribunal.

1. In our view it would be better if these questions were dealt with in the Local Court in an environment bound by the rules of evidence and where detailed findings can be made to the criminal standard.

1. It seems to us that even if the RMS is correct and the conduct set out in the agreed statement of facts ought properly be construed as involving breaches of s 15, it does not necessarily follow that the breaches would have great weight on the fitness question so far as the driver certificate is concerned. It would appear on the basis of the agreed facts as presented to the Tribunal that Mr Assadourian entered into an agreement that had the endorsement of NDT. It may be that it was a sham, but if so we would have expected to have seen accessory charges against NDT. Our understanding from submissions made at the joint application for referral of the question of law is that Mr Assadourian's arrangement was not atypical of arrangements being made at that time at least between small operators and the larger operators; and that his case was being treated as a test case.

1. In our view, all that could reasonably be inferred on the basis of the agreed statement of facts is that the arrangement involved a good faith attempt by NDT and Mr Assadourian to turn him into a servant of NDT. It is apparent that s 15 uses words of great generality, and in its terms gives little guidance as to how to resolve cases of the present kind where the arrangement between the principal (here NDT) and the contractor (here Mr Assadourian) seeks to avoid some of the features found in orthodox employment relationships.

1. Further we have not seen any material to suggest that the various record-keeping and accountability requirements were not observed by NDT in the period under notice. It is not clear to us that there was any direct harm done to the public interest. In our view it would be better if RMS developed industry standards in consultation with affected parties in relation to where the line is to be drawn between certified driver work and operator work in this industry.

The Period of Disqualification in relation to the Operator Licence

1. The Tribunal's order was expressed as one of disqualification for two years from 28 days after the date of its decision. That aspect of the decision was not stayed by the stay order made in June 2011. Therefore the disqualification period has continued to run during the currency of this appeal, and will according to our calculations expire on 7 February 2015.

Orders

1. The appeal is dismissed as it relates to the Tribunal's decision to affirm the decision to disqualify the appellant from holding an operator's licence.

2. The appeal as it relates to the appellant's driver certificate is extended to the merits. The Registrar is to fix a date for the making of directions for the hearing on the merits.

Decision last updated: 22 October 2013